IHSAN-UL-HAQ CHAUDHRY:- The petitioner through this constitutional petition has prayed that order dated 9.1.1989 passed by Zulfiqar Ali Khan Addl:District Judge Lahore as appellate authority under the Provisions of Punjab Urban Rent Restriction Ordinance is contrary to law and illegal.
1. The relevant facts are that the petitioner filed an ejectment petition in respect of shop comprising fo property No. F-1594 situated in Gali Darzian Azam Cloth Market Lahore. The ejectment was sought on ground of default in payment of rent with effect from February,1986 and personal use.
The respondent No.2/ tenant resisted the application on facts as well as legal points. He raised preliminary objections as to the absence of the relationship of land-lady and tenant and non sendee of notices u/s 13-A of the Punjab Urban Rent Restriction Ordinance. The learned Rent Controller .Seized of the matter framed the following preliminary issues:-
1. Whether there is relationship of landlord and tenant between the parties ?OPP.
2. Relief.
3. The petitioner in order to establish the relationship examined Munawar Begum as P.W.1 Tariq Mahmood as P.W.2 Muhammad Afzal as P.W.3 and the petitioner appeared as P.W.4.
The tenant on the other had examined Abdul Qayyum as R.W.1 Amar Mahmood Butt as R.W.2 and he himself appeared as R.W.3. The learned Rent Controller after hearing the arguments answered the preliminary issue in favour of the petitioner and since the payment of rent for the disputed period was not pleaded by the tenant therefore the learned Rent Controller proceeded to accept the ejectment petition after deciding the preliminary issue. The order of the learned Rent Controller is dated 6.7.1988. The tenant assailed this order through an appeal before respondent No. 1 who without reversing the findings on preliminary issue proceeded to dismiss the eject-ment petition.
The petitioner has now impugned this order through present petition.
4. The petition was admitted to regular hearing and notices were issued to the respondents. The respondent No.2 has entered appearance and contested the petition while respondent No. 1 was proceeded ex-parte.
5. The learned counsel for the petitioner in support of the petitioner has argued that the order of the respondent No. 1 is patently illegal perverse and clearly proves non application of mind to facts of the case and law applicable. It is added that the judgment of the learned Rent Controller was reversed simply because the respondent No. 1 held that land-lady has not served the tenant with a notice as required u/s 13-A of the Punjab Urban Rent Restriction Ordinance. It is submitted that even the institution of the ejectment petition constitutes a valid notice u/s 13 A. It is added that the tenant claimed payment of rent to Mohammad Afzal R.W.3 but he appeared and clearly stated that the property fell to the share of petitioner and she was entitled to receive rent.
6. The arguments are summed up with the submission that notice u/s 13-A does not constitute relationship therefore even after reversing the finding of the learned Rent Controller the respondent could not legally dismissed the ejectment petition because ejectment of the tenant was also sought on ground of personal need.
7. The learned counsel for respondent No.2 very candidly and Frankly conceded that it is not possible for him to support the impugned order of respondent No.2 and he has no objection to the matter being remanded to Rent Controller for decision on merits in accordance with law.
8. I have given my anxious consideration to the arguments of the learned counsel for the petitioner.
The operative portion of the impugned order of respondent No. 1 reads as under:- "The gist of the above discussion is that the ejectment petition having been filed without giving legal notice under Section 13-A of the Ordinance was premature and therefore not maintainable in the eyes of law. Hence, the findings given by the learned Rent Controller in favour of Mst. Firdaus Begum are set-aside and reversed and resultantly the appeal is accepted and the ejectment petition made by Mst. Firdaus Begum stands dismissed".
This shows lack of application of mind to the facts on i.e and law applicable. The preliminary issue reflected preliminary objection No.3 and the respondent No. 1 failed to appreciate that notice u/s 13-A has no relevancy on bearing of this issue. It is worthwhile to refer to the section 13-A which reads as under:- "13-A. Tenant to the informed in case of transfer of ownership. Where the ownership of a building in the possession of a tenant or rented land has been transferred by way of sale gift inheritance or in any other manner, whatever, from one person to another, the new owner shall send an intimation of such transfer in writing by registered post to the tenant of such building or rented land and the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clauses
(i) of Sub-section (2) of section 13, if the rent due is paid within thirty days from the date when the intimation should in the normal course have reached him".
9. It is therefore clear that the respondent No.1 proceeded in a most careless and casual manner while dealing with the precious rights of the parties. He could not find anything to dislodge the finding recorded by the learned Rent Controller on the preliminary therefore to a very crude technique to short circuit the whole proceedings. This is not all. He failed to notice that ejectment is also sought on ground of personal use. There is no nexus between service of notices u/s 13-A of the Ordinance,1959 and plea of personal use.Therefore;his findings are in uttered disregard of law.
10. The result is that this petition is allowed. The impugned order of . Respondent No. 1 dated 9.1.1989 is set aside and the case is sent to the learned District Judge Lahore to entrust the same to any court of competent jurisdiction for expeditious disposal by 31.7.1990. The parties are directed to appear before the learned District Judge Lahore on 16.6.1990.